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I.

Erie Doctrine Template

The issue is which law applies in the current controversy. 28 U.S.C § 1652 provides that the
laws of the several states shall be regarded as rules of decisions in civil actions in the courts of the
United States in cases where they apply. Under the doctrine of Swift v. Tyson, federal courts sitting
in diversity would only apply state statutes, not state common law. That doctrine was overturned by
Erie v. Tompkins, where the court held that state substantive law, whether statutory or common,
would apply in federal courts sitting in diversity, and preserved the power of the federal courts to
apply federal procedural law in the same. The problem is determining whether a law is substantive
(providing rights and obligations) or procedural (enforcing rights and obligations). Since a federal
rule/statute is applicable, a different analysis is required.
Under Hanna v. Plumer, the first issue is whether the federal law conflicts with the state law.
To determine the conflict, we look to the purpose of the respective rules and whether the federal law
is sufficiently broad to cover the point in dispute (Stewart v. Ricoh).
 Here, the purpose of the federal rule is...
 The purpose of the state law is...
 The federal rule is sufficiently broad to cover the disputed point because...
 The respective laws conflict because...
Thus, the federal law is applicable and in conflict with the state law.
Since the federal law is applicable, the next step under Hanna is whether the federal law is
constitutional, or whether the federal law is a valid exercise of congressional power. (Stewart). If
the federal law present is a statute and is constitutional, the statute applies. If the law is procedural,
it must be promulgated under § 2072, Rules Enabling Act, which states that the Supreme Court shall
have the power to prescribe general rules of practice and procedure in the U.S. District Courts.
These rules shall not enlarge, abridge, or modify any substantive right. Since the Supreme Court, the
federal judiciary committee, and congress participate in drafting and approving federal procedural
rules, there is a presumption of constitutionality. Under Burlington, if the federal rule can be
classified as procedural, the federal rule will apply if it is reasonably necessary to maintain the
integrity of a system of rules even if the rule incidentally affects a party’s substantive rights.
 Here, a federal statute is involved because...
 It is constitutional because...
 Therefore the federal statute applies.
OR...
 Here, a federal rule is involved because...
 It is promulgated under the REA because...
o The rule does not enlarge, abridge, or modify substantive rights because...
 Under Burlington, the rule can be classified as procedural because...
o The rule is reasonably necessary to maintain the integrity of that system of rules
because...
o It may incidentally affect the party’s rights because...
Thus, the federal statute or rule is procedural and applies to the current controversy.

Assuming the federal law failed any part of the Hanna test, a true Erie analysis applies to
determine whether the law is substantive or procedural. The test contains two parts. First, under
Guarantee Trust v. York, the test of “substantive” was whether the law significantly affects the result
of litigation (Outcome Determinative Test. The Court in Byrd v. Blue Ridge added to the outcome
test a balancing of state’s interests and countervailing federal interests. In addition, the outcome
test focused now on the likelihood of a different outcome rather than a possibility of a different
outcome. The second step is the twin aims test from Erie. If the federal court ignores the state law
and it would encourage litigants to go to federal court (forum shopping), or would result in an
inequitable administration of laws, the federal law is substantive and cannot apply.
 Here, applying federal law would significantly affect the outcome because...
 Applying the federal law is likely to result in a different outcome because...
 The state has an interest because...
 There is a countervailing federal interest because...
 The federal law would encourage forum shopping because...
 Applying federal law would result in inequitable administration of the law because...
Therefore, the federal law is substantive and cannot apply. State law governs the dispute.

The next issue is which state law to apply. Most states have their own choice of law
provisions. Historically, choice of law provisions were rigidly applied against parties according to the
state where the injury occurred. (example, car accident in PA, PA law applied regardless of parties
citizenship). Modern law recognizes a factor analysis—balancing the interest of the parties and the
interests of the state to achieve fairness. Choice of law implicates due process but is a less difficult
standard to meet than a “minimum contacts” test to obtain personal jurisdiction. The Brennan Test
for choice of law considers the parties’ contact with the state and the convenience to the parties.
 Here, the state has its own choice of law provision because...
 Assuming there was no choice of law provision,
o The states interest are...
o The parties interests are...
o Litigating in this state would be convenient to the parties because...
o The parties have contact with the state because...
Thus, __________ state law would probably apply.
ERIE DOCTRINE
A. The Erie Doctrine is a vertical choice of law issue.
a. Should the federal court apply federal law or state law when deciding a case?
b. To which issues does federal law apply, and to which issues does state law apply?
B. State law provides the rule of decision in a case of diversity jurisdiction
a. If the case does not arise under federal law, state law provides the decision.

Erie Railroad v. Tomkins,


Facts: P brought negligence action against D Railroad Company in District Court of New York
for injuries resulting from when he was hit by a passing train while walking along the train
tracks. According to Pennsylvania law P was trespasser when walking along railroad tracks and
would be barred from recovery.
Rule/Holding: The court should avoid inequitable administration of justice by keeping the
choice of law between federal and state courts constant. However, the court does not want to
allow unfair forum shopping by plaintiffs who go looking for the most sympathetic state.
In cases argued in federal court on diversity jurisdiction, the federal courts should use the
state law of the state in which the action is brought.
ERIE DOCTRINE CHECKLIST
A. Directly Conflicting Rules Test (From Hanna v. Plumer)
a. Look to see if there is a direct collision between the state rule and the federal rule. Does the
federal rule cover the same area that the staterule embodies? If there is no direct collision the
court does not have tochoose one over the other and can simply follow the federal
rule.B.Substantive/Procedural Rule Test. Decide whether the conflicting rules areprocedural or
substantive.
a.
In a collision between substantive laws, the state law will prevail
.i.But,
constitutional provisions always trump state law
.ii.But, the state law will only be upheld if it does not violate thetwin aims of Erie. Look to
Modified Outcome Determinative Test.iii.Would upholding the state law to the exclusion of federal
lawlead to improper forum shopping or inequitable administration of justice?b.
In a collision between procedural laws, a valid federal law will usually prevail
.c.The federal law must be valid under 28 U.S.C. § 2072 in that it does notabridge, modify, or
enlarge any substantive right. It must also be validunder the Constitution. If the rule is invalid, it
will not be used.d.If the rule is valid under 28 U.S.C. § 2072 and the Constitution, thefederal rule
prevails and in fact displaces state law under thesupremacy clause.C.Modified Outcome
Determinative Testa.If applying the federal rule to the exclusion of the state rule wouldchange the
outcome of the civil action, the federal rule should not beused. If the upholding of the federal rule
would not change theoutcome, merely the procedural process, the federal rule should
beused.b.Modified Outcome Determinative Test: Also apply the twin aims of Erie:i.Promote
equitable administration of justice1.Would applying the federal rule create divergentoutcomes in
different courts? If so, the court must followthe state law to create consistent outcomes.ii.Prevent
forum shopping.1.Would the plaintiff deliberately choose federal court overstate court to gain
some advantage?2.If there is a substantive advantage to be gained, there isa possibility of forum
shopping and the state law shouldbe applied.
CONFLICTING RULES TEST
A.Is there a direct collision with state law or rules?B.A federal constitutional provision will always
trump state law regardless of substantive/procedural characteristics. By nature of the Supremacy
Clausethe Constitution is the highest law of the land.a.i.e. Fifth, Sixth, and Seventh Amendments
trump state law.C.If the conflicting rule is substantive

use the state law.
D.If the conflicting rule is procedural

use the federal law if…a.Federal law must be valid under Constitution and the Rules EnablingAct.
The federal rule cannot abridge, enlarge, or modify anysubstantive right.E.Classifying procedural
rules: Does the rules only regulate the judicial processfor enforcing rights and duties recognized
by substantive law and for justlyadministering remedy and redress for disregard or infraction of
them? Is itrationally only a procedural issue?a.Examples: In what order to submit forms, when the
time period for amotion ends, when the action is considered to have commenced, andwhat
evidentiary standards are to be used.F.If there is no collision, use the federal rules as long as…
a.Federal rule does not violate twin aims of Erie Doctrine.i.Promote equitable administration of
justice1.Would applying the federal rule create divergentoutcomes in different courts? If so, the
court must followthe state law to create consistent outcomes.ii.Prevent forum shopping.1.Would
the plaintiff deliberately choose federal court overstate court to gain some advantage?2.If there is
a substantive advantage to be gained, there isa possibility of forum shopping and the state law
shouldbe applied.b.Check: is there an overriding federal interest for applying this rule?Does it
injure the independence of the federal judiciary to require thestate law? If so, federal interest
compels use of the federal rule.

Hanna v. Plumer,
380 U.S. 460,(1968).
F
: P brought negligence action against the estate of tortfeasor Louise PlumerOsgood in the District
Court for the District of Massachusetts under diversity jurisdiction. P filed complaint compliant
with FRCP 4(d)(1). D moved forsummary judgment on grounds that defendant had failed to
properly servethe complaint pursuant to Mass. Gen. Laws Ann. c. 197 § 9.
R/H
: There is a conflict between state and federal rules here on the properprocedural to submit a civil
complaint. The outcome determinative test is notabsolute. Instead of outcome determinative test,
the rule should be whetheror not the dispute rule really regulates procedure.
Purely procedural matters should be controlled by federal rules of procedure
.
OUTCOME DETERMINATIVE TEST
A.If applying a federal rule to the exclusion of the state rule would change theoutcome of the
action, it should not be used.

As long as the outcome does not change, merely the process the action goesthrough, the federal
rule can be applied.

Guaranty Trust v. York,
326 U.S. 9,(1945).
F
: P brought breach of fiduciary duty claim against D bank. D moved todismiss the action on
grounds that the statute of limitations had expired.
R/H
: Regardless of whether the case was argued in state or federal court,the outcome should be
substantially the same
. If the outcome issubstantively the same federal courts can apply the federal ruleinstead of the
state one.
Federal courts have to apply state statutes of limitation and not the federal statute of
limitations.SUBSTANTIVE/PROCEDURAL RULES TESTA.The federal courts have a vested interest
in upholding the proceduralrules that the judiciary has created.B.However, citizens have a claim to
have their substantive rulesprotected. If a rule changes one’s substantive rights it should
bedetermined by the state rule of decision.a.To allow the federal rule to define substantive rights
would leadto divergent outcomes between the state and federal courts.C.If the rule is procedural,
use a
valid
federal rule of decision.D.If the rule is substantive, perform the modified
outcome/determinativetest. Does following the state rule accomplish the twin aims of Erie?a.In
most cases state law will win out. The federal court will beobligated to emulate the result that
would occur in state court,unless doing so encourages improper forum shopping andinequitable
administration of justice.E.Contrarily, a state rule does not have to be followed if it is not boundup
with the state's rights and obligations or a Constitutional right of thecitizen.

Byrd v. Blue Ridge,
356 U.S. 525,(1958).
F
: P brought negligence action. D argued that P was barred from suing Dbecause the South
Carolina Workmen’s Compensation Act restrictedworkplace injury compensation to a statutorily-
defined compensation level.
R/H
: The outcome-determinative test, while suggestive, is notdemonstrative. The interests of the
federal court’s efficient and organizedoperations should be respected, especially where the
outcome-determinativetest does not return a strong result for either state or federal law.
TheSeventh Amendment's guarantee to a jury trial should win out over
a state law requiring a judge to decide such an issue
. The federalstandard for a jury wins over the state one for a judge.

Walker v. Armco,
446 U.S. 740,(1980).
F
: P brought products liability action against defendant in the United StatesDistrict Court of the
Western District of Oklahoma. D filed a motion to dismissthe action on grounds that the action
was barred by Oklahoma statute of limitations. Oklahoma statute of limitations requires an action
becommenced within two years of the events giving rise to the lawsuit.Oklahoma statute says the
action is commenced when service is made to D,while FRCP #3 says the action is commenced
when the action is filed.
R/H
: There is no conflict here because the FRCP does not define a statute of limitations as the
Oklahoma statute does. Because there is no conflict, thecourt considers whether FRCP#3 abridges
a substantive right – an actionshould not be given longer life in federal court than it is in state
court. Givingan action in federal court longer time to be filed than an action in state courtwould
encourage unfair forum shopping.
§ 97 is a substantive rule of decision, it controls service of process in Oklahoma federal court,and
is binding on the federal court as a state rule of substantiverights
.STATUTORY BASIS
Rules Enabling Act, 28 U.S.C.
§ 2072
.
(a)
The Supreme Court shall have the power to prescribe general rules of practice and procedure and
rules of evidence for cases in the United States district courts (including proceedings before
magistrate judges thereof) and courts of appeals.
(b)
Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflictwith such
rules shall be of no further force or effect after such rules have taken effect.
(c)
Such rules may define when a ruling of a district court is final for the purposes of
appealunder section 1291 of this title
Civil Procedure Outline - Erie Doctrine
**Abridged Erie**
1. In diversity cases in federal court, the court must apply federal procedural law but state substantive law, including state-
created common law…mostly. (Erie and RDA) Analysis tracks…
o State law vs. federal statute (authority from Supremacy Clause)/FRCP (authority from REA 2072)…
 Is the statute/FRCP is sufficiently broad to control the issue before the court? Does it "occupy the
field"? Is it "sufficiently broad to control the issue before the court"? (Walker, Stewart)
 If so, does the statute/FRCP represent a valid exercise of Congress' authority under the Constitution?
(Hanna)
 For FRCPs, is it "arguably procedural" and will using not "abridge, enlarge, or modify a substantive
right"? (REA, used in Sibbach)
 If passes all of these questions, statute/FRCP controls.

o State law vs. federal procedural common law (laches, "shocks the conscience")(authority from RDA 1652)…
 Is the judge-made federal rule broad enough to cover the circumstances? (rules are often interpreted
narrowly to avoid conflict, Gasperini, Walker)

 No. Follow state rule.


 Yes. Is the federal rule at least arguably procedural (and fall in line with federal statutes and
rules)?
 No. Follow state rule.
 Yes. Would following the federal rule be outcome-determinative AND encourage
forum-shopping? (refined outcome-determinative test, "twin aims of Erie", from
Hanna)
 Yes. Would federal policy trump the application of state law under Byrd
balancing ("countervailing factors", Byrd)?
 Yes. Apply judge-made federal rule.
 No. Apply state rule.
 No. Apply judge-made federal rule.

**Full Erie**
1. Pre-Erie
A. The Rules of Decision Act
i. If a federal statute, constitutional provision, or treaty applies, it will provide the governing law.

ii. Otherwise, federal courts should apply relevant state law.

B. Swift v. Tyson

i. The RDA refers only to state statutes, not to the common law decisions of state courts.

ii. In cases where no federal statute or state statute applies, courts do not have to rely on state common
law decisions; they can look to the common law of any state or even treatises for authority.

iii. Problems

1. Federal courts in diversity cases could reach their own decisions about the proper rule in
common law cases, even if those conclusions contradicted the governing case law of the state
in which they sat.

2. An out-of-state party to a state action has a distinct advantage.


a. If out-of-state law favored the out-of-state party, they could sue in that state court.
The in-state defendant can't remove in diversity cases (1441(b)), so they are stuck in
that state court.

b. If federal courts applied a more favorable rule, the out-of-state party could sue in
federal court. There is no right to remove from federal to state court.
 Thus, the out-of-state party has a choice of different rules since it has a
choice of two different court systems.

2. Erie

A. Holding
i. SCOTUS held that Swift's interpretation of the RDA led to an unconstitutional assumption of power
by the federal courts since they were making state law through these diversity cases.

ii. The RDA must be interpreted to require federal courts to apply not only the state statutes, but also the
common law of the state in a diversity case.

iii. In federal question cases, if a state claim is brought in through supplemental jurisdiction, the federal
court must still apply state law to that claim even though federal law will apply to the federal claim.

B. Early issues

i. How should a federal court apply state law if there are conflicting state court decisions about the issue
at hand?

 SCOTUS ruled that district courts should use the "supreme court predictive" approach;
federal judges should try to predict what the high state court would say.
 A federal judge should very rarely make the prediction that a state supreme court case would
be overruled.

ii. How should a federal court proceed if there is no precedent at all on the issue?
 In the same vein, the court should try to predict what state appellate courts would say.
 As an aside, if the issue were to come up after the diversity ruling, the state court is not bound
to follow the federal judge's decision; the state court may take it into account in his decision,
but he is not bound to follow it.

iii. Which state's law should a federal court use in diversity cases?
 Every state has choice-of-law rules to deal with this problem. From Klaxon, federal diversity
courts should use the choice-of-law rules of the state in which it sits.
 Thus, a NY federal court should apply whatever state substantive law the New York state
court would apply to the case.

 This reasoning was based on the fact that Erie mandated that the case should come
out the same way in federal court as it would in the state court of the state where the
federal court sat.
 This could create forum-shopping since a party could choose the federal court in a
state with a choice-of-law provision that would benefit them. The Klaxon court
recognized this risk but shrugged it off as inevitable.
3. Post Erie Changes

A. Guaranty Trust Co. v. York

i. Outcome-determinative test
 The choice of state or federal court in a diversity case should not affect the outcome of the
case.
 Thus, if federal practice differs from state practice, the court should determine whether the
case would come out differently if it applied its own rule. If it would, a federal diversity court
should use the state rule instead.

ii. Problems with York


 York mandated deference to state law even in areas where there was constitutional authority
to make a separate federal rule.
 Article III, Section 2 of the Constitution, together with the Necessary and Proper Clause,
provide constitutional authority for federal courts to apply their own rules on matters of
procedure, like the method of service of process. York, however, required deference to state
law even in matters of litigation procedure under the outcome-determinative test.
 Where the federal court could, constitutionally, apply its own rule, and is making a
discretionary policy decision whether to apply state law to ensure uniform outcomes, the
court may balance that uniformity policy against other policies.

B. Byrd v. Blue Ridge

i. Other policies might outweigh the uniformity policy posited by Erie and York.
 In cases leading up to Byrd, diversity courts had applied state rules even in matters having to
do with procedure in conducting the litigation under the outcome-determinative test, but they
have constitutional authority to follow a separate federal practice.
 The York policy of uniform outcomes must be considered along with other policies, which
might sometimes outweigh the uniformity policy.
 For example, the division of functions between judge and jury in federal cases, under the
influence of the 7th Amendment, was an important consideration supporting the use of federal
procedure in federal court in diversity cases.
 Since the state law was not "bound up with rights and obligations of the parties" (in which
case the federal could would have to defer to it), the Court could consider "affirmative
countervailing considerations."

ii. Byrd did not overrule York, it merely said that balancing was necessary in matters relating to
procedure.
 Only if important federal policies would be compromised by following state rules might the
federal court choose to follow a federal procedural rule in the face of a contrary state rule.

C. Hanna v. Plumer

i. Court recognized two different tracks.

1. Conflicts between state law and federal judicial practices (not a federal statute or a Federal
Rule)
 York dealt with judicial practice of applying laches; Byrd dealt with the judicial
practice of having the jury decide all factual issues. There was no Federal Rule
involved.
 Of course, in pure substantive matters or those bound up in substantive rights, state
law must apply.
 For grey areas, Hanna prescribed a more focused version of the York outcome-
determinative test to decide between state law and federal judicial practices which
are not a part of the FRCP.
 The court should consider whether applying the federal approach rather than
the state rule would lead to (1) forum shopping and (2) "inequitable
administration of the laws" (significantly different litigation opportunities
for diversity litigants than for those who must proceed in state court).
 The Court said that the question of equitable administration should be
viewed prospectively. In other words, would the litigant before filing suit
have greater litigation opportunities in federal court if that court followed its
own practice instead of state law?
 In the instant case, the Court said that if the service rule in question were a
judicial practice and not a part of the FRCP, state law would not have to be
used since the federal approach would only require the P to serve process in
a slightly different manner, a difference too slight to affect her choice of
forum or provide unfair advantages to diverse Ps over non-diverse Ps.
 This analysis was dicta, however, because the issue in Hanna dealt directly
with a FRCP Rule.

B. Conflicts between state law and the Federal Rules of Civil Procedure

 The Federal Rules were adopted by SCOTUS, under authority delegated to it by Congress in the Rules
Enabling Act (28 USC 2072).
 The REA requires that the Rules created by the Court be "arguably procedural" and not "abridge,
enlarge, or modify any substantive right."
 For conflicts involving a Federal Rule, the question is whether the Court had the power to adopt the
Rule. It must be broadly procedural (under Sibbach) and must not alter substantive rights.
 If it meets this two-part test, the Rule is valid and will apply, even if it leads to a different outcome
from what the P would obtain in state court.

B. So, if the conflict involves a federal judicial practice, the "modified outcome determinative test" of Hanna I
applies, If it involves a conflict between state law and a FRCP Rule, the question under Hanna II is whether the
Court had the power to write the rule (i.e. procedural and not alter substantive rights).

D. Clarifications on Hanna (requirement of "direct conflicts" with FRCP Rules)

i. Walker v. Armco Steel Corp.

 State practice provided that the P must file suit within the limitations period and serve process
in the action on the D within 60 days to avoid being barred. Under FRCP Rule 3, an action is
"commenced by filing a complaint with the court."
 If Rule 3 provides that filing the complaint satisfies the limitations period, an action might be
barred under state law but timely under the Federal Rule.
 The Court avoided this problem by holding that FRCP Rule 3 did not directly address the
issue of meeting the limitations period and does not affect state statutes of limitations.
 Thus, since there was no "direct collision" between the state rule and FRCP Rule 3, Hanna I
analysis through the "modified outcome-determinative test" applies.
 It seems likely that if there is a logical limiting construction that avoids a direct conflict, the
court will lean towards that construction (and Hanna I analysis).

E. Gasperini v. Center for Humanities


i. SCOTUS held that the standard used for judges to review damages created a conflict between state
procedural law ("materially deviates" from reasonable compensation) and federal common procedural
law ("shocks the conscience"), does not fall under Rule 59; thus, track 3 analysis is necessary.

 Track three analysis --

o Is the judge-made rule broad enough to cover the circumstances?


 No. Follow state rule.
 Yes. Is it at least arguably procedural (and fall in line with federal statutes and rules)?

 No. Follow state rule.


 Yes. Would following the rule be outcome-determinative AND encourage
forum-shopping?
 Yes. Would federal policy trump the application of state law under
Byrd balancing?
 Yes. Apply judge-made rule.
 No. Apply state rule.
 No. Apply judge made rule.

ii. Court found that following the federal common procedural would be outcome-determinative and
encourage forum shopping (Hanna). Since federal policy would not trump the application of state law
(Byrd), the state standard was used.
II. PERSONAL JURISDICTION
III. A.Courts have limited jurisdiction. Any party may challenge the assertion of personal jurisdiction by a
court over him or her with a 12(b)(2) motion.B.Generally, there are three kinds of personal
jurisdiction.1. In Personam – the power of the court to enter a judgmentagainst a person. The
judgment is binding on the person itself.2. In rem – the power of the court to enter a judgment
binding onproperty located within the jurisdiction of the court owned by aperson not within the
jurisdiction of the court.3.Quasi in rem – the power of the court to enter a judgment on anindividual
based on his or her property within the jurisdiction of thecourt, but where the action is unrelated to
that property. The courtcan enter a judgment against the party up to the value of theproperty.
IV. •
V. Pennoyer v. Neff,
VI. 95 U.S. 714,(1877).
VII. F
: Attorney Mitchell, an Oregon resident, sued Neff, a California resident, inOregon state court for
$300 in legal fees owed to Mitchell. Neff neverreceived service of process. The Oregon state court
entered a default judgment for Mitchell and seized his property and sold it to Mr. Pennoyer. Mr.
VIII. Neff sued Mr. Pennoyer to return his property to him, arguing that the originalaction seizing his
property did not have personal jurisdiction over him\.
IX. R/H
X. : Because non-residents can own property with Oregon, the state is givenpower over the property in
the absence of the citizens themselves. It iswithin the virtue of the state’s jurisdiction over the
property of non-residentsto hold and appropriate this property to satisfy the claims of its
citizens.However, the state court failed to attach the property to the previous actionand thus is must
be returned to Mr. Neff.
XI. A judgment may be entered inrem against a non-resident without service of process if the other
party is a resident of the state in which the suit is brought and notice of the property seizure is
publicized and the non-resident ismade aware of said seizure.
XII. C.Full Faith and Credit Clause - Full faith and credit ought to be given in eachstate to the public acts,
records, and judicial proceedings, of every otherstate.a.Any judgment entered against a party or
piece of property in one jurisdiction must be honored by each other jurisdiction in the UnitedStates.
An individual can take a judgment entered by one court andbring it to a court in another jurisdiction
where the court must enforceit on the party the judgment is entered against.D.Due Process – Any
exercise of personal jurisdiction must comply with DueProcess rights. Any assertion of personal
jurisdiction that offends notions of fair play and substantial justice is erroneous and must be
reversed.a.One Way Street - Substantial justice and fair play considerations canonly be used to
invalidate a claim of personal jurisdiction - it cannot beused to establish a just assertion of personal
jurisdiction in the absenceof purposeful contact with the forum state.b.For example, if the defendant
lived across the street from thecourthouse but in another jurisdiction and had never crossed the
streetinto the forum state, there could be no assertion of personal jurisdiction over that defendant,
even though it is incrediblyconvenient for him to litigate in the foreign state.E.Residency – A court
can assert personal jurisdiction over any party that is aresident of the state in which the court lies.
Every citizen is a resident of exactly one state. Corporations are residents or two states.a.Citizens:
normally a resident of the state where one is domiciled.However, domicile is not demonstrative.
Where is the intent to resideindefinitely?i.Intent derived from: place of work, place of residency,
place of voter registration, place where one pays taxes.b.Corporations are citizens of both:i.State
where corporation is incorporated. (Often Delaware).
ii.And…
XIII. Principal place of business. This is either where most of thecorporation’s goods are sold, or it is the
nerve center, where theexecutives and decision making entities are located.F.
XIV. P.J. Analysis
XV. – Follow the following list of checkpoints when analyzing apersonal jurisdiction problem:1. If federal
court, does rule 4(k) grants federal court jurisdiction?2. If state court, does long-arm statute grants
state court jurisdiction?3. If Specific jurisdiction, is there purposeful contact with theforum state?i.
Does the claim arise out of said transaction or occurrence?4. If General Jurisdiction, is there
continuous, systematic, andsubstantial contact with the forum state?5.Is there such minimum contact
with the forum state that D canreasonably expect to be hailed into court in the forum state?1.Does
the party inject goods into an interstate stream of commerce that creates targeted contact with the
forumstate?2.Goods marketed in the state?3.Physical presence in state can substitute for
minimumcontacts.6. Notions of fair play and substantial justice are validated byassertion of personal
jurisdiction?7. Is there unfair inconvenience to a foreign party?1.Compare private interest and public
interest.2.What is the extent of the inconvenience?3.Purposeful contact invalidates inconvenience?
4.Is it foreseeable to be hailed into court in the forum state?
XVI. •
XVII. International Shoe v. Washington,
XVIII. 326 U.S. 310(1945).
XIX. F
XX. : Defendant is a Delaware corporation based in Missouri. Defendant has nooffice in Washington but
does employ eleven to thirteen salesmen who meetwith clients and exhibit products and solicit sales
from buyers after whichthey transmit the orders to St. Louis from where the orders are filled
andshipped to Washington. State of Washington filed suit against Delawarecorporate defendant to
pay unemployment insurance in Washington.
XXI. R/H
XXII. : Defendant’s salesmen live in the state, rent property in the state, andsolicit sales within the state.
The level of contact with the state over timeindicates a “presence” within the state is substantial
enough to justify anassertion of personal jurisdiction.
A corporation that employs workersand conducts business over a sustained period of time in a state
has“presence” in that state and thus the state courts have in personam jurisdiction over that
corporation.
XXIII. Precedent:
XXIV. A minimum contacts analysis must be used to determinewhether a nonresident has presence enough
in a state to justify personal jurisdiction.PERSONAL JURISDICTION ANALYSIS PROCEDURE
XXV.

XXVI. LONG ARM STATUTES


A.Every state has a statute that dictates when the courts of that state canassert personal jurisdiction
over a non-resident.B.The statute gives the state courts jurisdiction when the nonresident
conductsbusiness in the forum state, commits a tortious act, derives substantial

XXVII. evenue from goods or services in the state, or owns, uses, or possess realproperty within the
stateC.The rigidness of
XXVIII. Pennoyer
XXIX. encouraged the creation of long-arm statutes inorder to work jurisdiction in a more fluid
society.D.Two kinds of Long Arm Statutes1.Focus on specific kinds of acts. The acts of the parties
have to fitunder the statutory definitions in order to assert jurisdiction over theparty.2.Courts can
exercise jurisdiction as far as the 14th amendment willallow. "Court can exercise jurisdiction rulings
not inconsistent with theDue Process clause of the 14th amendment".SPECIAL
APPEARANCEA.Appearing at a courthouse effectively waives the right to challenge personal
jurisdiction. A party who appears in that court has consented to the personal jurisdiction of the
court.B.A party may enter a “special appearance” where one enters the courthouseonly to challenge
the assertion of personal jurisdiction.
XXX. PURPOSEFUL AVAILMENT
XXXI. A.There must be purposeful availment by the defendant of the forum state inorder for the forum
state to assert
XXXII. in personam
XXXIII. jurisdiction over that party.B.Unilateral Contact – If the only contact with the forum state was
created bythe unilateral activity of the plaintiff, the defendant should not be subject tothe jurisdiction
of that state.a.Has D had the purposeful availment of the privileges and benefits of the forum state
or has the contact been created unilaterally by theplaintiff or someone else?
XXXIV. •
XXXV. Hanson v
XXXVI. .
XXXVII. Denkla,
XXXVIII. 357 U.S. 235,(1958).
XXXIX. F
XL. : When she lived in Pennsylvania, Dora Donner established a trust with aDelaware corporation. She
then moved to Florida and amended her will todirect a large portion of the trust towards one of her
daughters. Thedaughters filed suit against the Delaware corporation in Florida court toinvalidate the
trust on technical grounds.
XLI. R/H
XLII. : The Florida court does not have in personam or in rem jurisdiction overthe Delaware corporation
because it did not purposefully contact the state of Florida. The only reason the defendant has
contact with Florida is because of the unilateral activity of a third party in choosing to move from
Pennsylvaniato Florida.
XLIII. Where the only link between the defendant and the forum state is the unilateral activity of
another person, the forum statedoes not have personal jurisdiction over the defendant.
XLIV. C.Reciprocity - If D intentionally contacted the forum state and benefited fromthe relationship, D is
subject to the jurisdiction of the courts of the forumstate. With the benefits and gains come the
responsibility to be subject tothe forum state’s courts.D.Target – The conduct must be targeted at
the forum state, not just incident toit. Did the D choose the forum state to do business with? If the
defendantdid not voluntarily act to engage in affairs with the forum state or a party inthe forum
state, the conduct is not targeted at the state and there is noreasonable expectation of being haled
into court.a.Interstate business – Businesses sell goods across state lines. If thegoods are marketed,
produced, and sold in the forum state thatcorporation has targeted the forum state.b.Travel – A party
usually chooses where to travel and voluntarily doesso. Even passing through the forum state in
transit to another statecounts as voluntarily engagement in the forum state. Driving throughor flying
over another state is a form of targeted purposeful availmentof the state.
XLV. •
XLVI. Calder v. Jones
XLVII. F
XLVIII. : D, a Florida resident, writes for a tabloid and wrote a derogatory articleabout a California
actress. The California P brought defamation of characteraction against the Florida defendant.
XLIX. R/H
L. : D has purposefully written an article about a California resident that ismarketed and circulated in
California and has an impact on Californiamarkets. This is targeted purposeful contact with the forum
state. A courtcan assert jurisdiction over a party that has never set foot in the forum stateif that party
has targeted that state with intentional contact.
LI. •
LII. Burger King v
LIII. .
LIV. Rudziewicz
LV. F
: D applied for a franchise agreement with Florida plaintiff’s office inMichigan. The defendant
travelled to Florida for training and engaged innegotiations with the Florida plaintiff while there. The
D owned and operateda Burger Restaurant for some time in Michigan, sending payments to
Floridabut eventually shut down operation. Florida plaintiff sued Michigan D forbreach of contract
LVI. R/H
LVII. : D intentionally and willfully initiated contact with the Florida plaintiffswhen he contacted them to set
up a franchise in Michigan. Therefore, thereis purposeful availment and substantial revenue deriving
from contact withthe state of Florida. When a D has purposefully directed continuous conductat the
forum state, jurisdiction is reasonable as long as contact with forumstate was continuous, substantial,
and intentional.
LVIII. Personal presence isnot required to assert in personam jurisdiction over a person.Contractual
obligation may create enough contact with the forumstate.
LIX. There are no black letter rules to personal jurisdiction. The analysis isalways nuanced and contextual.
LX. INDIRECT JURISDICTION
LXI. A.Some state courts use the situs of property in the forum state as a method of gaining personal
jurisdiction over the defendant. This method of quasi-in rem jurisdiction is largely invalidated by the
Supreme Court in Schaffer v. Heitner.B.A state may not seize the property of a nonresident in order
to compel theresident to submit to the jurisdiction of the state. That violates notions of fairplay and
substantial justice.
LXII. •
LXIII. Schaffer v. Heitner,
LXIV. 433 U.S. 186,(1977).
LXV. F
LXVI. : P filed shareholders derivative suit against D, a corporation incorporated inDelaware. The order of
sequestration seized 82,000 shares of stock in theGreyhound corporation, none of which had
certificates within the state of Delaware. Delaware statute makes the state the situs of all stock
issued byDelaware corporations. The sequestration would not end until Ds submittedto the personal
jurisdiction of the Delaware courts.
LXVII. R/H
LXVIII. : It is unfair to D to allow the state to indirectly assert jurisdiction overthem in the absence of
minimum contacts and purposeful availment. Theydo not reside or hold real property in the state and
thus have no reasonableexpectations of being drawn into court in the forum state. If the state
isprecluded from asserting
LXIX. in personam
LXX. jurisdiction over these nonresident Dsdirectly, it be should be prevented from doing so indirectly
through holdingtheir property ransom.
All assertions of personal jurisdiction must bevalidated by the minimum contacts analysis set forth
inInternational Shoe.

LXXI. GENERAL AND SPECIFIC JURISDICTION


A.General Jurisdiction – the defendant's contact with the forum state is socontinuous and substantial
that the assertion of jurisdiction is justified evenover matters that do not give rise to the lawsuit.
Example: residency. The court can assert personal jurisdiction over aresident in a claim resulting from
conduct in another state havingnothing to do with residency.b. State courts also have general
jurisdiction over a corporation that isincorporated in that state with regards to any claim.c.Citizenship
and incorporation are the traditional grounds for general jurisdiction.d.Continuous, substantial, and
systematic conduct in the forum statealso creates grounds for general jurisdiction.e.There is at least
one court where a person can be sued for any and allclaims against him or her.B.Specific Jurisdiction
– Personal jurisdiction over a party can arise out of party’s intentional activities in the forum state
that give rise to the lawsuit.Isolated incidents that give rise to a lawsuit allow the courts of the
forumstate in which the isolated incidents took place to assert personal jurisdictionover the involved
parties.a.Example: Tortious actions. A court has personal jurisdiction over atortfeasor on all claims
arising from that tortious act.b.Contractual obligations also give rise to specific jurisdiction. If a
partypurposely contacts the forum state and derives substantial benefitfrom a relationship with the
forum state and its residents, that party issubject to the forum state’s jurisdiction for all claims arising
out of thetransaction or occurrence that took place in the forum state.

LXXII. INDIRECT JURISDICTION


LXXIII. A.Some state courts use the situs of property in the forum state as a method of gaining
personal jurisdiction over the defendant. This method of quasi-in rem jurisdiction is largely
invalidated by the Supreme Court in Schaffer v. Heitner.B.A state may not seize the property of a
nonresident in order to compel theresident to submit to the jurisdiction of the state. That violates
notions of fairplay and substantial justice.
LXXIV.•
LXXV. Schaffer v. Heitner,
LXXVI.433 U.S. 186,(1977).
LXXVII. F
LXXVIII. : P filed shareholders derivative suit against D, a corporation incorporated inDelaware. The
order of sequestration seized 82,000 shares of stock in theGreyhound corporation, none of which had
certificates within the state of Delaware. Delaware statute makes the state the situs of all stock
issued byDelaware corporations. The sequestration would not end until Ds submittedto the personal
jurisdiction of the Delaware courts.
LXXIX.R/H
LXXX.: It is unfair to D to allow the state to indirectly assert jurisdiction overthem in the absence of
minimum contacts and purposeful availment. Theydo not reside or hold real property in the state and
thus have no reasonableexpectations of being drawn into court in the forum state. If the state
isprecluded from asserting
LXXXI.in personam
LXXXII. jurisdiction over these nonresident Dsdirectly, it be should be prevented from doing so
indirectly through holdingtheir property ransom.
All assertions of personal jurisdiction must bevalidated by the minimum contacts analysis set forth
inInternational Shoe.

LXXXIII. .FORUM SELECTION CLAUSESA.A forum selection clause in a contract is applicable as long as
it is done ingood faith.B.Forum selection clause cannot be used to unduly harass a party or
createextra expense.C.Forum selection clauses often promote efficiency, making the forum
foradjudication the state of incorporation of one of the parties. This is entirely inline with notions of
fair play and substantial justice.a.It makes perfect sense to confine the adjudication of
contractualdisputes in a forum that has jurisdiction to one of the parties.
LXXXIV. •
LXXXV. Carnival v. Shute,
LXXXVI. 499 U.S. 585(1991).
LXXXVII. F
LXXXVIII. : P went on a cruise with the defendant’s pleasure cruise line and wasinjured while on board.
P brought premises liability action against defendantin Washington court. Ds filed a 12(b)(2) motion,
citing the forum selectionclause in the P ‘s ticket with the D.
LXXXIX. R/H
XC. : The clause restricting choice of forum is applicable even though it is notbargained for. There is no
bad-faith motive in choosing Florida as the forum,but rather logic and common sense lies behind it.
XCI. As long as the forumselection clause is invoked in good faith and creates efficiency and consistency,
it shall be upheld
.EXTEME INCONVENIENCEA.If it is extremely inconvenient for the defendant to litigate in the forum
state,the defendant may be able to resist the assertion of personal jurisdiction.B.This is more likely
only for foreigners with no purposeful contact with theforum state.C.Inconvenience Analysisa.The
private necessity is staying free from costly litigation.b.The public interest in entering a judgment
against the defendant.c.The extent of the inconvenience.d.Purposeful Contact – Any purposeful
contact with the forum stateinvalidates a presupposition of inconvience. If the defendant hastravelled
to the forum state before, s/he can do it again to litigate itsclaim.e.Foreseeability – Can the
defendant reasonably anticipate being drawninto court in the forum state?

XCII. Asahi v. Superior Court,


XCIII.480 U.S. 102,(1987).
XCIV. F
XCV. : Asahi is a Japanese company that sells automotive parts to a number of companies, including
Cheng Shin, a Taiwanese company. Cheng Shin sells20% of its products in California. Cheng Shin
filed an indemnification claimagainst Asahi in California court after being sued by a California
productsliability plaintiff.
XCVI. R/H
: There is no purposeful availment here. The Japanese tire valvemanufacturers sold tire valves that
could have be sold in any state across theworld. The link between Asahi and California is too tenuous
to satisfy thepurposeful availment test from Hanson v. Denckla. Additionally, theinconvenience on
Asahi on travelling from Japan to defend a case in theCalifornia is immense. Even if D had minimum
contact and purposefulavailment in the forum state, it would still offend concerns of substantial
justice and fair play to assert jurisdiction over it. It is more foreseeable andfair to have this action
adjudicated in court in Taiwan or Japan
XCVII. INTERNET JURISDICTION
A."Sliding Scale Zippo Factors"
a. A website that passively posts information that any party can access and read does
not purposefully contact other states where citizens can access the material.
b. However, where a website intentionally tries to serve the market of the forum state,
such as a website with a regional focus or a professional specialization, that kind of
contact is targeted at an audience and gives grounds for personal jurisdiction.
c. An interactive website that enables exchange of information over the internet may be
subject to personal jurisdiction of the forum state, but this depends on the level and
quality of interaction with citizens in the forum state.
B. Posting some material online does not satisfy purposeful contact if thematerial is not
specifically targeted at the forum state. Material that ispassively posted so anyone can see it
online does not usually establishreasonable foreseeability of civil liability in the forum
state.C.Personal jurisdiction is justified if:
XCVIII. Material is posted on a website with a regional focus.b.Material specifically mentions the
forum state or the region.c.Web site is associated with a certain association or region that
issituated in the forum state.D.Interactive websites – These sits exchanges information with
the nonresident,creating a commercial relationship. If the company knows that a website
isused to advertise and transact business with nonresidents, that websiteowner is purposefully
contacting the states of the nonresidents.a.In the absence of interaction, there is no
purposeful availment.b. Interactive business that conduct business over the interneteffectively
purposefully contact the citizens in other states.E.General Jurisdiction - When a company
conducts continuous, systematic, andsubstantial activity with the forum state over the
internet, that company maybe subject to general jurisdiction in the forum state.a.This is
determined by whether or not the website targets a specificregion or state.
XCIX. TAG JURISDICTION
C. A.Traditionally states have unchallenged jurisdiction over all individuals thatare located within
the borders of that state, even if the presence istemporary. A state can “tag” a defendant who
temporarily enters the stateand thus assert personal jurisdiction over them.B.The power of
domain takes into account purposeful contact. An individualusually chooses to travel to a
state. In the rare case someone is broughtagainst his or her will to the forum state, that state
does not have personal jurisdiction over the party for lack of purposeful contact with the
state.C.This power of domain is independent of minimum contacts analysis.D.Domain is
consistent with notions of fair play and substantial justice. Onewho travels to another state
has a reasonable expectation that one will besubject to the courts of that state. It is fair and
reasonable to expose eventemporary residents of the state to the jurisdiction of the state.
CI. •
CII. Burnham v. Superior Court,
CIII. 495 US 604,(1990).
CIV. F
CV. : D, a New Jersey resident, went to California to visit his ex-wife and childrenfor a few days.
While he was visiting California, his wife served him with acourt summons and a divorce
petition.
CVI. R/H
CVII. : Courts always has jurisdiction over a party who is physically present inthe state, regardless of
minimum contacts. This principle is a longstandingtent of state autonomy and the foundations
of American law. The state’s ability to assert jurisdiction within its own borders shall not be
infringed byconcerns of minimum contacts or inconvenience of travel.
Tag jurisdictionis legitimate. State has authority over everything in its borders.